Gidday Dazzler
Hey ratbag. I reckon if the acceptance of the contract was to fix the vehicle once the $ were paid to the repairer then the contract is between Mary and the car owner to fix the car. Once the car is sold the capacity is gone. Thoughts ?
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The matter is tricky in Contract Law, IMHO. Other than as a side issue, Contract doesn't apply at all in the issue between Mary and Commodore. His remedy and her liability lie in Tort (i.e. in Equity, in the main).
There are also Equity issues
per se that could impact also.
IMHO, the morality is easier to sort out than the legalities in this case! Now, there's a turn up for a change!!
Morally, it is my belief that Mary should pay to the Commodore owner ["Commodore"] the difference in the price he received (assuming the transaction between Commodore and buyer were at arm's length ... ), and what he could reasonably have expected to have received had his car not been damaged by Mary. I had a similar "discussion" with a loss adjuster, then the loss adjuster's boss, WRT my niece's car when she was tail-ended by another car - long story ...
So if he got $5,000 and he could reasonably have been expected to get $5,800 if the damage caused by Mary had either not occurred, or had been repaired, then Mary would, in Equity, be obliged to pay him the $800 difference.
At Law, things get much more complicated, as the replies in this thread rightly attest.
AFAICS, a number of things impact here:
1) The car is no longer available for inspection (presumably) by an independent third party (e.g. his insurer/loss adjuster - even ... ). This makes it difficult, if not impossible to assess what the difference in value might have been.
2) In the absence of any pre-sale valuation of the car "as was", and the absence of any evidence from Commodore as to what he got from the sale, the point in (1) makes it even more difficult for Commodore to sustain any claim against Mary. Any proceedings should start with Mary's legal adviser issuing interrogatories in respect of these matters.
3) Chances are that he sold the car for more than the Glass's Guide price (bloody hard not to ... ), in which case there has been no detriment to him at Law.
4) Mary patently wants to do the right thing, and good on her for that. Determining what "the right thing" is, is the difficult part.
5) Mary could start by asking the questions I have outlined above in (2) and (3) to attempt to establish what "the right thing" is as a quantum of damages that Mary should pay to Commodore.
6) In the absence of any documentation being forthcoming from Commodore, I would advise Mary to: a) seek legal advice; and b) hang on to all the money until there is some concrete evidence that shows that Commodore has suffered any kind of financial loss. Payment of any amount could be interpreted as an admission of some liability, where there is none ATM on the (total lack of) evidence to hand presently.
Just IMHO, and FWIW.
[EDIT]
Another thought is that if he were insured, Mary's liability would
initially extend only to payment of his excess. His insurer would then attempt to recover the balance over and above his excess from Mary, but they could be constrained by the court if she pleaded financial hardship. It is a tricky matter, whichever way one slices it.
[end edit]
